Removing Barriers - One Class Action at a Time

By Paula Pearlman and Shawna Parks

Brown v. Board of Education marked a watershed moment in this country's legal history-- separate is not equal. That moment was equally noteworthy for people with disabilities who have spent the last six decades fighting for full inclusion and equal participation in society and its institutions. Despite longstanding California law, the Rehabilitation Act of 1973, and the passage of the Americans with Disabilities Act in 1990, physical barriers continue to pervade both private businesses and government programs and services. The pervasiveness of these barriers often calls for a comprehensive and thorough response, which is often achieved through a class action.

In both the courts and media, these disability issues are often derided as less important, not worthy of judicial attention, or simply the realm of vexatious litigants. However, in our work, we see physical access barriers directly impact the lives of our clients in very real ways-- preventing a person with a disability from accessing a domestic violence clinic, a classroom, a neighborhood grocery store, or a doctor's office. Even in the U.S. Supreme Court's recent cases involving these issues, it is apparent that real and dramatic barriers persist even in the most critical of government services. Indeed, in Tennessee v. Lane, heard in 2004, the plaintiff who used a wheelchair was forced to crawl up a flight of stairs to appear in court, only to have the court recess. The judge then arrested him when he refused to crawl up a second time.

Fortunately, it is well settled that class certification is appropriate in cases involving systemic challenges to physical access barriers under the ADA and similar disability nondiscrimination laws. Both the ADA and other state and federal disability nondiscrimination statutes require people with disabilities be provided with full and equal access to the benefits afforded to the public by government entities and public accommodations. Many courts, including the 9th U.S. Circuit Court of Appeals, have repeatedly held that actions that challenge failure to remove architectural barriers are suitable for class certification.

Moreover, in so holding, the courts have recognized that the presence of architectural barriers to persons with disabilities results in a class-wide impact such that there is little variation in the experiences of class members who have attempted to use these inaccessible facilities. As the U.S. District Court in the Northern District has noted, "[I]nadequate wheelchair accommodations...are very likely to affect wheelchair-users in the same way." Arnold v. United Artists Theatre Circuit Inc., 158 F.R.D. 439, 449 (N.D. Cal. 1994). In most cases alleging disability discrimination, including those that allege the existence of pervasive barriers and the failure to provide disability access, the issues that determine liability and the appropriateness of a class action focus on the defendant's acts and omissions, making class treatment an efficient means of addressing discrimination.

The 9th Circuit has handled numerous disability rights class actions, including some addressing physical access barriers. In Pierce v. County of Orange, the 9th Circuit addressed the claims of a class of inmates who alleged "non-compliant jail facilities and denial of access to programs and services available to non-disabled detainees." 526 F.3d 1190, 1195 (9th Cir. 2008). Indeed, the court in Pierce largely found that the Orange County Jail had failed to remove physical barriers and failed to provide access to programs and services, and did so on a class-wide basis. This finding was later supported and amplified on remand at the district court. Pierce followed Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001), which also addressed the claims of people with various disabilities, including those with mobility impairments, in the state prison system.

District courts have repeatedly certified classes alleging systemic disability access cases pursuant to Titles II and III of the ADA and Section 504. In fact, in Californians for Disability Rights, Inc. v. California Dep't of Transp., 249 F.R.D. 334, 345 (N.D. Cal. 2008) the U.S. District Court for the Northern District of California noted that "[c]ases challenging an entity's policies and practices regarding access for the disabled represent the mine run of disability rights class actions certified under Rule 23(b)(2)."

Not only does the law provide for class treatment of these issues, but systemic treatment of physical access barriers is good public policy as well. In our experience, systemic, class-wide treatment of these issues can be the most effective approach for both plaintiffs and defendants. System wide treatment of access barriers allows Defendants to approach these barriers efficiently, with an organized plan and timetable, rather than through piecemeal fixes. The result is frequently a more cost-effective and less disruptive solution.

Particularly when dealing with public entities, when barrier removal is often required in order to provide access to critical government programs, the class approach to these cases frequently leads to more efficient use of public money and legal resources. Similarly, for individuals who need to access various areas of the public entity's or public accommodation's facilities, it avoids the necessity of each person individually having to challenge each barrier as they encounter it, particularly when a legal challenge may come too late to actually facilitate access to the program or service at issue. Our office has litigated class barrier removal cases against large systems, including major universities and court systems, and find that this holistic approach to barrier removal cases can serve all parties involved.

In order for people with disabilities to be fully included in society and have access to the same goods and services, such cases are often needed. The class action is an effective, efficient and recognized tool for addressing widespread and systemic barriers.

Paula Pearlman is the executive director of the Disability Rights Legal Center and a visiting associate professor of law at Loyola Law School Los Angeles.

Shawna Parks is the legal director of the Disability Rights Legal Center and an adjunct professor of law at Loyola Law School Los Angeles.